HEDGES". SEIBERT CYLINDER OIL CUP CO.
abridgmerlt'oC; the rights of parties in respect to the jurisdiction of this court, nor to the act of a party calculated, through the use of such rule or praetice,to compass a. result which should impair the rights of his opponent ili equity proceedings herein. Hyde v. Stone, 20 How. 170. The facts alleged in the defendants' plea, and disclosed by the record, furnished no legal bar to this proceeding. Moreover the plea is not founded in equity. It should therefore be adjudged insufficient, and the defimdants required to answer, and it isoruered accordingly.
OIL CuP Co.'
(Olrcuit Own qf AppeaZ., Third OircuU, AprU f, 181li.)
.APPB.ur-JOINT JtmGMBNT OR DBCRBB.
Wliete a judgment or decree is several persons jointly, one of them,C&Dnot appeal alone, without a proper summons and severance·
. Appeal from the Circuit Court of the United States for the District of New Jereey. In Equity. Suit by the Seibert Cylinder Oil Cup Company against Manufacturing Company, Charles Couse, presithe Newark dent, and William H. Hedges, secretary and treasurer, thereof, for infringement of .letters patent No. 188,243, for an invention relating to lubricators used in steam engines. There was judgment for plaintiff, (35 Fed. Rep. 509,) and defendant Hedges alone appeals. Motion to dismiss appeal. Appeal dismissed. Lawrence E. Sext<m, for the motion. J. a. Clayton, opposed. Before ACHESON, Circuit Judge, and BUTLER, District Judge. ACHESON, Circuit Judge. Undoubtedly the final decree in the court below in this case is a joint decree against the three defendants, the Newark Lubrioator Manufacturing Company, Charles Couse., and William H. Hedges. These parties were jointly interested in the suit, and the decree affects them all jointly. Yet only one of them, William H. Hedges, has appealed from th.e decree. His appeal was taken without previous summons and severance, or any equivalent action, and no cause has been shown for the nonjoinder of his codefendants in the appeal. Now, it has been held repeatedly by the supreme court, and is the settled rule in that court, that all the parties against whom a joint judgment or decree is rendered must unite in the writ of error or appeal, or it will be been a summons and severance, or some dismissed, unless there is shown for the nonjoinder. Maslike proceeding, or sufficient terson v. Herndon, .10 Wall. 416; Feibelmanv. Packard, 108 U. S. 15, 1 Ct. Rep. 138; EstilJ.v. Trabue, 128 U. S. 225, 9 Sup. Ct. Rep. 58. These decisions are conclnsive here, and the appeal of William H.
n:DER+L REPORTER, vol. 50.
,be dismissed for want of. the joinder therein of the other
this cOQc!usion, we do not deem it necessary to con· othf.rreason urged in support of tbe motion to dismiss, namely, that the appeal was taken tQo late.
ATMORE et aZ.
April 29, 1892.)
(Circuit Court of Appeats, Third Circuit.
AND CO'N'rI1!fGBNT RBllUI1!fDBRl!. Testator direClted that his wife should receive the interest on $5,000 durin( herlife; aftefWardS: such iriterest·to be paid fj() her daughters E. and A.; if they or eitber of them died within 10 years from the date of the Will, his son "to have the use of the said $5,000 by paying the interest to ,the cllildren" of E. and A.; and, "after the deathof both E. and A., (if t.lley should die before the expiration of the Faoove-nietltlone4 ten years, BttJ;le expiration of the above-mentioned ten years, in case either or both the aforesaid or A. should have died,) the money shall be divided in two equal parts, and be divided between their children equally." The will then gave to the son allt,es,tator'S l'llal and personal property, after the debts and funeral'expenses "arid" the above-mentioned $5,000 are paid or secured.", Held, that the parenthetical clause was merely intended to preserve to the son the ten years' "use" before given, $1}. case E.' and A. died before that ·time, and that on the death of the teststor the corpus of tbeproperty vested in the children of E. and A., and was not contingent upon: the death of E. and A. before the expiration of the 10 years. '. . "
2. ,SAME-:.LEGAOY'-"CHARGE ON L41ifDS.
The devise to the son of altthe real and personal property, after paying the debts and, "the, above-mentioned 15,000, "constituted the $5,000 a charge on the real estate.
'The statut.ory bond givenby'the son as executor was merely fOf the faithful discharge of his official duties, and was not a security for the payment of the $5,000 legacy. 46 Fed. Rep. 429, affirmed.
Appealfrom the Circuit Cbu'rt Of the United States for the District of Delaware. " .' " '" , . . .In Equity. Bill by Jane Atmore, administratrix, and the heirs at law of Ann Jones, deceased, againstJ'ohn H. Walker, administrator d. b. n. c. t. a., and the heirs a,t law and' creditors, of Joseph Dean, for a construction of the will of the said Joseph Dean. Decree below, was infavor of complainants. See 46' Fed. Rep. 429. Defendants appeal. Af· firmed. Edward G. Bradford and Benj. NieldB, for appellants· .H. Gordon Me Couch , for appellees. Before ACHESON, Circuit Judge, and DALLAS and BUTLER, District Judges. BUTJ.'ER. District Judge. Joseph Dean on the 6th of January, 1860, made a will which contains the follpwiIig provisions:
"Secondly. Ido direct that 'my bElloved wife Jane Dean shall receive the interest of five thousand dollars during her lifetime in lieu of her dower at common law if she shall 80 elect, one hundred dollars on account of the first